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E-Tolls: What now?

21 September 2012, 09:54

As many Gautengers surely noticed the judgement by the Constitutional Court (Concourt) yesterday, most people may accept the outcome as yet another victory for the government at the cost of the people.

This, alas, is not the case.

Here is the nutshell of what transpired in the Concourt:

The interim interdict OUTA sought earlier in the year, and which was subsequently granted, was set aside on appeal. One has to remember that this was merely an interdict, pending the review of E-Tolls as a whole.

The review itself is still in process, and will be conducted under the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

In short, the above was by far the most boring of subjects at university (not that the lecturer helped its cause, and if you went to TUKS during the past 10 years, then you know who that was...).

On a serious note however, the interdict was granted on the premise that the average Gauteng motorist would suffer irreparable harm during the review process in contrast to the National Treasury, whom would have to make budgetary re-allocations, due to the fact that it stands as surety on behalf of SANRAL in this entire debacle.

So... motorist, versus government...

And government won.

The simple truth is that the National Treasury got themselves into this mess, because the Government Employees Pension Fund (GEPF) was invested in the E-Tolls project to the tune of R 20 billion.

According to GEPF regulations, any investment its Trustees make on its behalf, needs to be backed by government as surety, to ensure that the fund is protected at all times.

That means that none of this would have happened, and that there may have been a different outcome in Court, had the GEPF not made an investment in SANRAL.

An earlier article of mine outlined the very real possibility of Insider Trading when the GEPF made the investment, as SANRAL bonds were only offered to the public some months after GEPF bought their stake. This meant that government, via the GEPF gad an unfair investment advantage due to inside information, before the public was informed of the opportunity.

Bottom line is that government is not bound by the Insider Trading Act 135 of 1998, as they didn’t bind themselves with enactment.

This makes the investment by the GEPF irregular in the sense that it is unethical... but not illegal. However, The King reports on Corporate Governance may have a thing or two to say about all of this.

What we have then, is a negative outcome for the average Gauteng motorist because government, via the GEPF and National Treasury acted unethically in their investment dealings...

Personally, I don’t care, as I’m not buying one and certainly not paying E-Tolls... not on the prices they expect us to do anyway.

The main reason the Concourt had to rescind the judgement by the North Gauteng High Court was due to a basic legal principle called the ‘Separation of Powers’.

It is this very principle that keeps the government from doing what they want... and more importantly, keeps the Cabinet from meddling in the Judiciary.

Unfortunately, it works both ways, as even the Court’s powers are defined by law. The government, as the executive arm of the country, has the sole right to decide how and where they collect money from the public... for whatever reason.

In this case, it was a case of charging Gautengers as they use the roads, or support SANRAL via tax payer’s money, which included everyone, from Cape Town to Durban.

In principle, most people are happy to pay tolls, as this limits... or ring fences... the expenditure to the user. What ticked most people off about E-Tolls, and still does, is the ridiculous rates SANRAL expects us to pay for a return trip between Joburg and Pretoria.

The rule of thumb was that it would cost you between R 60 and R 100 return, depending on where you got off. Considering the amount of users, as well as the initial investment, one cannot help but wonder who gets the cash after three years when everything is paid for. Indeed, that is where the rip-off started.

If a round trip was R 10 to 20, then I’d pay it gladly, as SANRAL would have its return on investment, and there would be more than enough to maintain the roads throughout its lifetime, especially considering the amount of motorists on theN1 each day.

It is on this point where a new Court application could be on the horizon, as the ‘irreparable harm principle’ could come into effect once more.

SANRAL still needs to show how it calculated the figure it’s charging people... a factor sure to feature in the review process under PAJA.

Now, if the review were to take some years to finalise, then surely one couldn’t expect the average motorist to pay inflated rates, subject to drastic reduction for that period!

So... in conclusion one needs to know that another application will be lodged by OUTA, and one needs to understand that the Concourt rescinded the judgement on the basis it was granted in the first place. Other facts also have the power to stop SANRAL, and the Insider Trading South African government.

In the end, it also boils down to our willingness to purchase E-Tags...

Unfortunately for them, the Toll Police will be quite busy as long as I’m on the highway, as I’m not tagging anything on their behalf!

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